On September 22, U.S.
District Court Judge Nathaniel Gorton, a Bush Sr. appointee, issued an injunction,
letting the Massachusetts Libertarian Party substitute Bob Barr for George
Phillies. Barr v Galvin, 08-11340. The state did not appeal the injunction.
This is only the second time in history that a court has required a state
to permit presidential substitution. The first was in Florida, in 1996, when
a U.S. District Court ordered that Harry Browne be substituted for Ed Clark.
That case, Libertarian Party of Florida v Mortham, is not reported,
which makes it more difficult to cite as a precedent.

Vice-presidential substitution
has won in court three times, all in cases filed by John B. Anderson in 1980,
against Florida, Pennsylvania, and Indiana. Substitution for lesser office
won in court in Virginia in 1989. Those are the only precedents.

The logic for substitution,
in presidential elections, is compelling. All states permitted the Democratic
Party to substitute a new vice-presidential nominee in 1972, to replace the
original nominee who had been chosen on July 14, 1972, and certified to all
states the next day. The new Democratric nominee was chosen on August 8, 1972,
after the original nominee resigned. Therefore, since all states permit qualified
parties to substitute, the 14th Amendment seems to require the
states to permit substitution for unqualified parties.

The Massachusetts Libertarian
Party used a stand-in in 2008 because when it started circulating its petition,
it didn't know whom the national convention would be choosing. In 2000, the
Massachusetts Secretary of State had told the Reform Party that it could use
a stand-in, but that the stand-in had to be someone who was sincerely seeking
the party's national nomination.

Therefore, this year,
the Massachusetts Libertarian Party chose George Phillies as its stand-in,
since he was seeking the nomination. However, at the national convention in
Denver on May 25, he was eliminated after the third ballot, on which he received
31 votes. Bob Barr was chosen on the sixth ballot, with 324 votes.

The Massachusetts Libertarian
Party had argued that, whatever the merits of the constitutional argument,
that the state was obliged to permit substitution because in 2007 the state
had e-mailed the party that substitution would be permitted. But the decision
says, "At worst, Attorney Green's email to Phillies, suggesting that
her office would prepare a form on which the plaintiffs could request substitution,
was vague. It made no promise that the request for substitution would be granted."

Judge Gorton granted
the injunction because "A minor political party, desiring to substitute
its presidential nominee on the ballot in Massachusetts is left to guess how,
if at all, to do so in compliance with the law. Surely there can be no state
interest that would justify such a burden. Therefore, Massachusetts General
Laws chapter 53, sec. 14 will likely fail constitutional scrutiny, even without
specifically determining whether the statute is void for vagueness or grants
unfettered discretion to the Commonwealth. See also Anderson v Firestone
(finding that independent candidates for president and vice president were
denied equal protection of the laws by the state's failure to allow for substitution
of the vice-presidential candidate listed on the petitions)."

In future presidential
elections, this precedent will be useful to give all minor parties the freedom
to schedule a late national convention, without injuring ballot access petitioning.

Other states that have
refused, so far, to permit presidential substitution are Alabama, Maine, New
Hampshire, and South Dakota. Libertarian petitioning efforts in 2008 were
greatly impaired by the restrictive policies of all four of those states.
The party's Maine petition could not start circulating until after the May
convention, because no one knew which nominee to list. As a result, that petition
failed to meet one of the petition deadlines. The South Dakota petition succeeded,
but just barely.

OTHER
BALLOT ACCESS VICTORIES

Delaware: on September
5, a lower state court ruled that the Independent Party nomination process
this year was legal. The party chose its nominees by committee, instead of
convention. Allen v Independent Party, 3951-cc. If this case had turned
out differently, Ralph Nader would have been off the ballot.

Kentucky: on September
16, a lower state court ruled that the Libertarian Party may nominate Edward
Martin for U.S. House, even though he is a registered Republican. Cummings
v Martin, 08-CI-08751. The law says an independent candidate must not
be a member of a qualified party. But the decision says that Martin is not
an independent candidate; he is the nominee of an unqualified party. The decision
is being appealed.

Pennsylvania:
on September 15, the Commonwealth Court ruled that the Libertarian Party's
presidential substitution is valid. Pennsylvania permits substitution, but
a Republican Party official had challenged on the grounds that the substitution
should have been made in May (when the party knew who it was really running)
instead of at the end of the petition drive. In re Substitute Nomination
of Barr, 414 M.D. 2008.

DEADLINE
LAWSUITS

During September, federal
courts applied widely differing standards on whether to enforce election law
deadlines strictly. When the Democratic and Republican Parties sought relief,
they won. When minor party and independent candidates sought such relief,
they lost.

Louisiana: on
September 26, the 5th Circuit removed Bob Barr, Libertarian nominee,
from the presidential ballot. A U.S. District Court had put him on three days
earlier. The State had kept him off because his electors had not submitted
their paperwork by the legal deadline. Libertarian Party v Dardenne, 08-30922.

However, the legal deadline
was September 2, and the Democratic and Republican Parties didn't submit their
electors and their certification of their national nominees until September
5. The Libertarian Party actually told the state who it was running for president
and vice-president before the major parties did, but the Libertarian elector
forms weren't turned in until September 11. State law gives qualified parties
a three-day grace period for such paperwork. The Libertarian Party is a qualified
party. Since hurricanes had caused the state to move the deadline from September
2 to September 8, the U.S. District Judge had felt the Libertarians qualified,
using the 3-day grace period. The Socialist Party was a co-plaintiff, but
since it isn't a qualified party, it didn't get any relief from either court.

On September 27, Barr
asked the U.S. Supreme Court for relief. 08A269. On September 29, the Court
asked Louisiana to respond.

Maine: on September
17, U.S. District Court Judge John A. Woodcock, a Bush Jr. appointee, refused
to grant an injunction putting Laurie Dobson on the ballot as an independent
candidate for U.S. Senate. Dobson turned in her signatures to the town clerks
on time. The deadline was May 27, and she met that deadline. But the town
clerks couldn't get the signatures checked by the June 2 deadline to submit
the signatures to the Secretary of State.

Woodcock's opinion starts,
"There is no Constitutional right to procrastinate... A reasonably prudent
candidate should anticipate the short turnaround time for the registrars and
avoid procrastination by filing well in advance of the deadline." In
effect, he is saying the true deadline is in April. In 1984, a U.S. District
Court had invalidated Maine's April 1 deadline (Stoddard v Quinn).

Mississippi: on
September 25, a U.S. District Court ruled that Brian Moore should not be on
the ballot because his paperwork was 10 minutes too late. The Natural Law
Party had nominated him, but the nomination documents were delivered to the
Secretary of State's office just as the door was closing. Moore v Hosemann,
3:08cv-573-TSL.

Pennsylvania:
on September 12, U.S. District Court Judge Yvette Kane refused to place Chuck
Baldwin on the ballot. The party had turned in most of its signatures on the
August 1 deadline, but had not turned in the remainder until the end of August.
When the state refused to accept the last batch of signatures, the party had
sued, arguing that the August 1 deadline is invalid, since the state legislature
never passed it. The deadline only exists because the State Elections Department
agreed in an out-of-court settlement in 1984 that it would accept petitions
up until August 1.

On September 11, Judge
Kane had held a second hearing in this case, by telephone. A that time, she
said she was persuaded that the U.S. Constitution does require that all state
election laws for presidential elections must be passed by a legislature.
But she was bothered by her belief that if she invalidated the August 1 deadline,
then the deadline would revert to the old May deadline that had been successfully
challenged in court in 1984. The next day she put out a ruling that contradicted
what she had said on September 11. The ruling said that perhaps the legislature
had granted permission to the State Elections Office to set deadlines. There
is no evidence for this, however. The case is still alive and the final ruling
on declaratory relief may be better.

Texas: on September
23, the State Supreme Court ruled that Barack Obama and John McCain should
remain on the ballot, even though their names were not certified by the August
26 deadline. Neither had been nominated by that deadline. Obama had been nominated
on August 28; McCain on September 3. The challenge to Obama and McCain had
been filed by Bob Barr and the Libertarian Party of Texas. In re Bob Barr,
08-0761. The Court did not release any opinion, but it probably will do
so in the future.

West Virginia:
on September 5, U.S. District Court Judge John Copenhaver, a Ford appointee,
upheld the August 1 petition deadline. Barr v Ireland, 2:08-cv-0990.
The ruling says the state needs all of August and most of September to check
the signatures. Of course, if West Virginia didn't require so many signatures,
it wouldn't need so much time. West Virginia requires more signatures (as
a percentage of the voters) than any state, except that Oklahoma is more severe
and North Carolina is equally severe. The ruling acknowledges that West Virginia's
petition is tied for second-most restrictive, but does not discuss why the
state needs so many signatures.

OHIO
PUTS MORE PARTIES ON BALLOT

U.S. District Court Judge
Edmund Sargus earlier this year had put the Libertarian Party, and the Socialist
Party, on the Ohio ballot. Then, in August, the Green Party, and the Constitution
Party, had filed lawsuits seeking the same relief.

On September 2, the Ohio
Secretary of State said she would put the Green Party and the Constitution
Party on the ballot, so Judge Sargus didn't need to make additional rulings.
The basis for all of this is that in 2006 the existing law on how a new party
gets on the ballot had been struck down, and the legislature did not pass
a new law.

Ohio has six political
parties on the ballot, the most it has had (with party labels) since 1932.

McCAIN
WINS BALLOT ACCESS LAWSUIT

On September 16, U.S.
District Court Judge William Alsup ruled that John McCain should be on the
California ballot. Robinson v Bowen, C08-3836, n.d. The plaintiff,
a presidential elector candidate for Alan Keyes, had argued that McCain is
not "natural-born". Judge Alsup said that McCain is "natural-born."
He also said that even if a candidate does not meet the constitutional qualifications
to be president, he or she should still be on the ballot.

Every time a minor party
presidential candidate who does not meet the constitutional qualifications
to be president tries to get on the ballot, and the matter goes to court,
courts rule that the candidate should not be on the ballot. The two leading
cases are Cleaver v Jordan, in which the California Supreme Court said
that Eldridge Cleaver should not be on the 1968 California ballot, and Jenness
v Brown, in which a U.S. District Court in Ohio said that Linda Jenness
(Socialist Workers Party presidential candidate in 1972) should not be on
the ballot. Both Cleaver and Jenness were under age 35. Unfortunately, neither
decision is reported, although the briefs in Robinson v Bowen cited
the Cleaver case.

Judge Alsup wrote, "Mechanisms
exist under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any
candidate to be ventilated when electoral votes are counted, and the Twentieth
Amendment provides guidance regarding how to proceed if a president elect
shall have failed to qualify. Issues regarding qualifications or lack thereof
can be laid before the voting public before the election and, once the election
is over, can be raised as objections as the electoral votes are counted in
Congress. Therefore, this order holds that the challenge presented by plaintiff
is committed under the Constitution to the electors and the legislative branch,
at least in the first instance. Judicial review – if any – should occur only
after the electoral and Congressional processes have run their course."

The party that most often
nominates a presidential candidate, or a vice-presidential candidate, who
does not meet the Constitutional qualifications, is the Socialist Workers
Party, which has done this in 1972, 1980, 2004, and 2008. Each time the party
used a stand-in who did meet the Constitutional qualifications (but
only in those states which refuse to print an unqualified presidential candidate
on the ballot). Each time except 1972, the party did not fight in court to
place its actual nominee on the ballot. Perhaps, if the SWP or any other party
nominates someone in 2012 who doesn't meet the Constitutional qualifications,
the party can raise the issue in court again, this time depending on the Robinson
v McCain precedent.

OTHER
LAWSUIT NEWS

Arizona: the State
Supreme Court recently issued two election law decisions that will help petitioning
candidates and parties. In Jenkins v Hale, issued on August 19, the
Court said that just because a petition signer puts a Post Office Box address
instead of a residence address, does not necessarily mean that the signature
is invalid. In Bee v Day, it said that just because the candidate forgot
to specify the term of the office he or she is seeking on the petition, does
not invalidate the petition.

Maine: on September
4, Bob Barr filed a lawsuit to get on the ballot. He had enough valid signatures,
and they were delivered to the Secretary of State by the deadline for the
Secretary of State to receive them. However, some of his signatures had not
been delivered to the town clerks on time. This case is the mirror image of
the Dobson case described above, and it has the same
judge. So far no hearing has been set. Barr v Dunlap, 1:08cv-288.

Minnesota: on
October 8, a lower state court will hear oral arguments in a case to determine
whether Instant-Runoff Voting is compatible with the State Constitution and
state election laws. Minnesota Voters Alliance v City of Minneapolis, 27-cv08-15.

Mississippi: on
September 18, the State Supreme Court ruled that the special U.S. Senate election
should be near the top of the ballot (just under the presidential race and
the other U.S. Senate race), not at the very bottom of the ballot. The Governor
and Secretary of State had been planning to put the special U.S. Senate election
on the bottom of the ballot, beneath the local elections and local ballot
measures. Barbour v Berger, 2008-M-01534.

New Hampshire:
on September 12, the Libertarian Party filed a federal lawsuit, alleging that
the state is constitutionally required to permit stand-ins. Libertarian
Party of N.H. v Gardner, 08-cv-367-JM.

Puerto Rico: on
August 27, a U.S. District Court ruled that Puerto Rico must print its ballots
in English as well as Spanish. Puerto Rican ballots in the past have been
printed only in Spanish. The court said the Voting Rights Act applies to Puerto
Rico. That act requires ballots for any language minority that comprises at
least 5% of the population. In Puerto Rico, 14% of the population is primarily
English-speaking rather than Spanish-speaking, although Puerto Ricans are
generally bilingual.

South Carolina:
on September 17, a lower state court ruled that Eugene Platt, Green Party
candidate for state house, should not be on the ballot. Tempel v Platt,
Charleston Co., 08-CP-10-4978. On September 18, a federal court agreed.
South Carolina Green Party v Election Commission, 3:08-cv-02790. The
federal case is not over but the candidate won't be on the ballot. There is
no written opinion yet from the federal court.

Tennessee: on
September 24, State Senator Rosalind Kurita sued the Secretary of State and
the Democratic Party, in order to get on the ballot. She won the August primary,
but the party wouldn't certify the results because it said she only won because
some Republicans voted for her. Tennessee does not have registration by party.
Kurita v The State Primary Board of the Tennessee Democratic Party, 3:08-cv-948,
m.d.

Washington: on
September 26, the King County Superior Court ruled that Dino Rossi may have
the ballot label "Prefers GOP Party." The Democratic Party had sued
the Secretary of State to force him to print "Prefers the Republican
Party" next to Rossi's name. Informally, Rossi is the Republican candidate
for Governor. The new "top-two" law says a candidate may say he
or she prefers any party. There really is no "GOP Party"; "GOP"
is an old nickname for the Republican Party. But, the law says a candidate
may express preference for any party, major or minor. The law defines a minor
party as anything that is not a major party. Thus it is impossible to prove
that the GOP Party does not exist.

Rossi chose "GOP"
because polls show that he does better with that label than with "Republican."
Smith v Reed, 08-2-33009-5.

REPUBLICAN
CONVENTION FAILS TO PASS PRIMARY REFORM

The Republican Party
cannot change its national rules except at a national convention. The 2008
Republican national convention failed to pass any changes that would significantly
alter the party's plan for the timing of presidential primaries and caucuses.
The convention considered, but did not pass, a plan to let the smallest states
go first, and then to provide a lottery for the primary dates for groups of
larger states. Because this plan failed to pass, hopes that state legislatures
might make big changes before the 2012 primary season are dim.

In contrast to the Republicans,
the Democratic Party is able to alter such rules, by action of the National
Committee. But it takes both major parties, working together, to bring about
legislative changes.

LEGISLATIVE
NEWS

North Carolina:
State Senator Jim Jacumin (R-Connellys Springs) will introduce a bill next
year to ease the number of signatures for an independent candidate for district
office. The existing law is so harsh, no independent candidate for U.S. House
has ever qualified for a government-printed ballot, and North Carolina has
been using government-printed ballots since 1901. Existing law requires about
18,000 signatures.

Pennsylvania:
on September 17, State Senator Mike Folmer introduced SB 1578. It makes huge
improvements to ballot access, both for minor parties and independent candidates.
For minor parties, the bill borrows Delaware's law, which defines "minor
party" to be a group with registration of one-twentieth of 1%. Independent
canddiates for statewide office would need 2,000 signatures.

PARTY
REVENUE FROM STATE INCOME TAX "CHECK-OFF"

`

Democratic

Republican

Green

Libertarian

Independence

Constitution

Personal
Choice

Alabama

6,737

7,542

-
-

2

-
-

-
-

-
-

Arizona

28,514

16,222

-
-

2,108

-
-

-
-

-
-

Idaho

35,540

30,891

-
-

2,854

-
-

2
,144

-
-

Iowa

35,382

21,057

-
-

-
-

-
-

-
-

-
-

Kentucky

121,548

88,464

-
-

-
-

-
-

-
-

-
-

Maine

11,003

4,406

3,685

-
-

-
-

-
-

-
-

Minn.

48,572

28,204

4,321

-
-

4,959

-
-

-
-

N. Mex.

6,574

3,310

-
-

-
-

-
-

-
-

-
-

No. Car.

921,096

630,234

-
-

-
-

-
-

-
-

-
-

Ohio.

173,372

173,372

-
-

-
-

-
-

-
-

-
-

Rhode I.

55,322

39,409

278

-
-

-
-

-
-

-
-

Utah

45,776

66,848

40

70

-
-

3,794

260

Virginia

31,310

17,519

-
-

-
-

-
-

-
-

-
-

TOTAL

1520,746

1127,478

8,324

5,034

4,959

5,938

260

The states above give
state income-tax payers a chance to direct a contribution to the political
party of the taxpayer's choice. The chart above lists the amounts received
by each party. Ohio does not let taxpayers decide which party to help, and
only lets taxpayers help parties that polled 20%. All the other states except
North Carolina include all qualified parties. The New Mexico Secretary of
State erroneously told the New Mexico tax office that only the Democratic
and Republican Parties were qualified. This was a mistake, as the Green and
Libertarian Parties were also qualified minor parties on Jan. 1, 2007.

#partisan label is permitted
on the ballot (other than "independent").

PETER
CAMEJO DIES

On September 13, Peter
Camejo died. He was 68 and had been living with cancer for several years.
He had been the Socialist Workers Party presidential candidate in 1976, and
had polled 91,314 votes. Later he had rejected doctrinaire Marxism, and had
become a leader of the Green Party. He was that party's nominee for Governor
of California in 2002, 2003, and 2006. He was also Ralph Nader's running mate
in 2004. Although he was born in New York, he was Venezuelan and he grew up
in that country. He and his father were on the 1960 Venezuelan Olympics sailing
team. When he took the SAT, he got a perfect score in the mathematics part
of the test. He got a job as a financial analyst for Merrill Lynch, but he
was fired when the company learned about his political views. He then established
his own investments company, which helped investors to invest only in companies
that followed socially responsible policies. His last political appearance
of note was on August 2, 2008, at the Peace and Freedom Party state convention
in Sacramento, California, where he spoke in favor of Ralph Nader's nomination.

ALASKAN
INDEPENDENCE PARTY BECOMES FAMOUS

On August 29, John McCain
announced that Sarah Palin is his choice for vice-president. She was formally
nominated on September 3. One of the first revelations about Sarah Palin was
that she had attended one state convention of the Alaskan Independence Party,
and as Governor had taped a greeting to the party's 2008 state convention.
A leader of the party told the press that Palin had once been a registered
member of the party. The McCain campaign quickly proved that this was not
true, although it turned out that her husband, Todd Palin, had been registered
in the party between 1995 and 2002. Publicity focused on the fact that the
party's founder, Joe Vogler, really did passionately desire that Alaska secede
from the union, and that most of the party's activists currently also favor
that idea.

This year, the Alaskan
Independence Party has nominated Chuck Baldwin for president.

RON
PAUL ENDORSES CHUCK BALDWIN

On September 22, Ron
Paul endorsed Chuck Baldwin (the Constitution Party presidential nominee),
via his own blog. He appears to have made this decision because he was irked
at Bob Barr for not appearing at the September 10 press conference. That press
conference, at the National Press Club, had featured Paul exhorting voters
to vote for either Baldwin, Barr, Cynthia McKinney, or Ralph Nader, since
they all agreed on the desirability of ending U.S. military involvement in
Iraq. All of those candidates except Barr attended the press conference.

ONE-STATE
PARTIES MAKE PRESIDENTIAL NOMINATIONS

The nation's last remaining
presidential conventions have now been held. On September 21, the New York
Independence Party chose John McCain for president. On September 8, the Independent
Green Party of Virginia chose Chuck Baldwin for president. On August 21, the
Mississippi Natural Law Party chose Brian Moore (the Socialist Party presidential
candidate) for president. On September 22, the New York Conservative Party
chose John McCain for president. On September 15, the New York Working Familes
nominated Barack Obama for president.

The Working Families
Parties would like to have nominated Barack Obama for president beyond just
New York, but he was not willing to accept that party's nomination in South
Carolina, Massachusetts, or Connecticut.

WORKING
FAMILIES PARTY GETS PUBLIC FUNDING IN CONNECTICUT RACE

Cicero Booker, Working
Families Party nominee for State Senate from Connecticut's 15th
district (Waterbury) has qualified for full public funding. In order to accomplish
that, he had to obtain signatures from 20% of the last vote cast in his district,
and to raise $15,000 in small donations, mostly from people in his district.
Booker is the only opponent of the incumbent Democrat, Joan Hartley.

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